By Thomas J. Spulak - 08/09/11 10:24 PM EDT
More than 15 years ago, Congress enacted the Lobbying Disclosure Act in an effort to shed greater light on the activities of lobbyists. As intended, the LDA continues to maintain a surprisingly appropriate balance between the desire for information about the activities of paid lobbyists and other individuals who seek to petition their government for personal reasons.
The LDA has been amended several times, most recently in reaction to the Jack Abramoff and Randy “Duke” Cunningham scandals. Since then, additional amendments have been suggested. For example, legislation introduced by Rep. Mike Quigley (D-Ill.) would require LDA registrants to disclose specific information about meetings between lobbyists and government officials. While such a requirement would demand greater recordkeeping, the provision should be given due consideration. For more than 50 years, representatives of foreign governments have been required to report similar detailed information under the Foreign Agents Registration Act (FARA). If extending the requirement to the LDA could increase confidence in lobbyists, it should be considered.
Another area that is often cited as being in need of review is the so-called 20 percent exception to registration. Under that provision, an individual who otherwise meets the definition of a lobbyist does not have to register if he or she spends less than 20 percent of his or her time on lobbying activities. The exception excuses corporate executives who make occasional visits to Capitol Hill, but otherwise are not engaged in influencing the legislative process, from registration. Some believe that percentage is too high. A compromise would be to reduce it to 5 percent but have it apply to lobbying contacts, rather than the broader category of lobbying activities. No doubt such a change will require more corporate officers to register — including executives who once might have been registered out of an abundance of caution but after the 2007 amendments and the recent attacks on the lobbying profession chose to terminate their registration.
The 20 percent exception would continue to apply vis-à-vis the executive branch. Why the difference? There is a smaller likelihood of undue influence occurring through contacts with executive branch officials — thus, a higher threshold before registration should be required. And yes, this would require separate registration and reporting for executive and legislative branch lobbyists, something that many states require.
On the subject of executive branch lobbying, even after 15 years there is still confusion about whether registration is required. Many lawyers who practice before regulatory bodies believe that all of their contacts with officials are exempt from registration and reporting under the LDA. While certain regulatory activities are in fact exempt, such as the filing of comments as part of a formal rulemaking, subsequent oral contacts in connection with that filing is a lobbying contact that could trigger a registration requirement. Further, many are still unsure if the official with whom they are speaking is “covered,” and therefore could be a lobbying contact triggering registration. To make this all simpler and encourage compliance, all executive branch officials should be covered — after all, career officials often make policy decisions just as political appointees.
Finally, the separate LD-203 reporting requirement should be eliminated and the information that is required to be reported in that semi-annual filing should be disclosed in the quarterly report. Having one report that shows activity and contributions would be a much better way of following the money. And shouldn’t the attestation requirement contained in the LD-203 regarding gifts extend to the contents of the quarterly report?
There are no doubt additional improvements to the LDA that should be considered. After 15 years, it is time to engage in a comprehensive review of the act and examine the relevance of the information that it produces as well as ways to encourage compliance. Periodic amendments might be easier to achieve but will result in a continued patchwork statute. Something this important should receive Congress’s full attention.
Spulak is a King & Spalding partner and chairman of the firm’s Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.